State Consumer Disputes Redressal Commission
Good Luck Petroleum Co.Pvt.Ltd vs Future Generali India Insurance Co.Ltd ... on 4 December, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.13/30
Instituted on : 27.11.2013
Good Luck Petroleum Co. Pvt. Ltd.,
Rajim Road, Village : Abhanpur,
District Raipur (Chhattisgarh) ... Complainant.
Vs.
1. Future Generali India Insurance Co. Ltd.,
Shop No.3, IInd Floor, Maruti Business Park,
Near Diamond Petrol Pump,
Raipur (C.G.)
2. Future Generali India Insurance Co. Ltd.,
502, Avani Signature, 5th Floor,
91A/1, Park Street,
Kolkata ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Sanjay Dadsena, for complainant.
Shri N.K. Thakur, for the OPs.
ORDER
Dated : 04/12/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
// 2 //
(a) The Opposite Parties may be directed to pay a sum of Rs.30,00,000/- (Rupees Thirty Lakhs Only) which the complainant is entitled as claimed amount.
(b) The Opposite Parties may be directed to pay interest from the date of loss at the rate of 18% p.a. till the date of filing of the complaint.
(c) The Opposite Parties may be directed to pay Rs.2,00,000 (Rupees Two Lakhs Only) towards compensation for unfair trade practice, mental agony and harassment for non-
settlement of the genuine loss.
(d) The Opposite Parties may be directed to pay interest @ 18% p.a. on the above said amount from the date of complaint till payment in full.
(e) Any other relief, which this Hon'ble State Commission deems fit, may also be awarded in favour of the complainant as against the Opposite Parties.
(f) Cost of the complaint may also be awarded.
2. Brief facts of the complaint are that : the complainant M/s Good Luck Petroleum Co. Pvt. Ltd. is a private limited concern with Mr. Jatin Shah and Mr. Vishal Vyas as its Director. The complainant is engaged in the business of oil Re-refinery. The O.P. No.1 is an Insurance // 3 // Company incorporated under Companies Act, having its branch office at Shop No.3, IInd Floor, Maruti Business Park, Near Diamond Petrol Pump, Raipur (C.G.) and O.P.No.2 is office of the claim settling authority. The complainant has taken an insurance policy for their factory to cover Fire and Allied perils, OPs issued the policy and covered the risk against payment of consideration and issued the policy No.2012-F0058040-FIR dated 23.06.2012. The period of policy was from 23.06.2012 to 22.06.2013 and the sum assured was Rs.3,00,000,000/- and the premium amount of Rs.2,23,317.96 was paid. On 05.08.2012 at 3.00 A.M. there was heavy rain in and around the factory. Due to the presence of many water bodies around the factory ground level also increased and entered the subject pit of oil tank. Due to force of buoyancy from the accumulated water in the pit the valves and outlet pipes of oil tank No.9 got damaged. Due to which oil started flowing out from the tank and got contaminated with water and sand. As because the oil got drained out of the tank, the said tank became lighter and subsequently due to heavy force of buoyancy from the ground water forced the tank out of the pit breaking the concrete ceiling. The complainant immediately intimated to the OPs through their designated call centres as per the instructions given in the policy. On receipt of intimation, OPs appointed Mrs. Kiran Chhabra, Surveyor on 08.08.2012 and the said Surveyor visited the spot on 10.08.2012. The said Surveyor visited the spot, inspected the damages and took // 4 // photographs. Also took some samples of contaminated oil, water and sand. As per the demand of the Surveyor, all the documents which were demanded by the Surveyor were provided to her. On the basis of the documents submitted by the complainant, Surveyor assessed the loss and submitted the Survey Report to O.P.No.2. On receipt of the Survey Report, the OPs repudiated the claim vide their letter dated 07.01.2013. The complainant was shocked by receiving the repudiation letter. The ground of repudiation of the OPs was wrong. The OPs have repudiated the claim on wrong grounds and have committed deficiency in service. The Surveyor and the OPs have repudiated the loss with a non-professional approach, bad intention of not to pay claim and lack of knowledge of the subject. The OPs have repudiated the genuine claim of the complainant without any reason and have committed deficiency in service. The loss of the complainant was covered under the policy and complainant has submitted all the documents, evidence and proof that the loss suffered by the complainant was payable but the OPs have not paid the claim to the complainant. The said act of the OPs comes under the category of unfair trade practice.
3. The OPs filed their joint written statement. The OPs raised preliminary objection that the complaint is not maintainable as the complainant having no right to file any complaint before this Commission. The complainant is not a consumer and this Commission // 5 // has no jurisdiction to entertain the present complaint as the complaint of the complainant adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and not falls within the ambit of the provisions of the Consumer Protection Act, 1986. The complainant has failed to disclose all the correct facts and intentionally not come with clean hand and as such the complainant cannot be allowed to gain from the same and hence now the State Commission has no jurisdiction to entertain and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986, and as such the complaint is liable to be dismissed summarily on this score alone. The dispute raised by the complainant in the present complaint is manifestly outside the purview of the Consumer Protection Act, 1986, therefore, the complaint is liable to be dismissed.
4. The complainant filed documents. Document A-1 is one page Insurance Policy issued by insurance company, A-2 is repudiation letter of the Insurance Company dated 07.01.2013, A-3 is copy of Mine Inundation Case Histories, A-4 is Authority Letter issued by complainant Company in favour of Santosh Singh CEO dated 22.11.2013, A-5 is Claim Bill.
5. OPs (Insurance Company) has also filed documents. Annexure OP 1 is Claim Form, OP-2 is Survey and Assessment Report, OP-3 is Policy Terms and Conditions, OP-4 is Statement o Hariram, OP-5 is Occurrence report.
// 6 //
6. On the basis of averments of both the parties, the points for determination are :-
(i) Whether complainant is a consumer ?
(ii) Whether complainant is entitled to get compensation from the OPs, if yes, then to what extent ?
Discussions and its conclusion :-
Point No.1. Whether complainant is a "consumer" ?
7. Shri N.K. Thakur, learned counsel appearing for the OPs (Insurance Company) has argued that the complainant is not a consumer and the OPs (Insurance Company) is not a service provider, therefore no question arises for committing any deficiency in service by the OPs. The transaction held between the parties is commercial transaction and therefore, the complainant is not a consumer. The dispute between the parities does not come within the purview of the consumer dispute, therefore, this Commission, has no jurisdiction to decide the instant complaint.
8. On the contrary, Shri Sanjay Dadsena, learned counsel appearing for the complainant has argued that the insurance policy was purchased by the complainant for protection of interest of his property and not for earning profit, therefore, the complainant is a consumer and // 7 // dispute between the parties comes within purview of consumer dispute.
9. We have heard learned counsel for both the parties and have perused the document produced by them.
10. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of // 8 // the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English enactment considered in the case is entirely different. Having regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service" for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint.
11. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
"8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in // 9 // addition to and not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
12. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
"We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
// 10 //
13. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in // 11 // connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
14. On the basis of above cited judgments, it is clear that the dispute between the parties is a consumer dispute and the complainant comes within the purview of "consumer" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.
Point No.2. Whether complainant is entitled to get compensation from the OPs, if yes, then to what extent ?
15. Shri Sanjay Dadsena, learned counsel appearing for the complainant argued that the OPs are totally ignorant about the terms and conditions of the insurance policy. The OPs have wrongly interpreted the word "Inundation". The report of the Surveyor is not genuine and Surveyor has wrongly mentioned in his report that the loss is not payable because the cause of loss does not fall within any of the perils covered. He further argued that the complainant suffered loss as mentioned in the complaint due to inundation which is covered in the perils. OPs never provided Policy Schedule to the complainant and the Surveyor has wrongly defined the word "Inundation". The OPs (Insurance Company) repudiated the claim of the complainant with malafide intention. The complainant is entitled to get // 12 // compensation from the OPs, as mentioned in the relief clause of the complaint.
16. Shri N.K. Thakur, learned counsel appearing for the OPs has argued that the claim of the complainant has already been settled by the OPs (Insurance Company) on the basis of material produced by the complainant before the OPs (Insurance Company) and his claim has been decided on its merits. The OPs (Insurance Company) appointed Kiran Chhabra, as Surveyor, who gave her report and she rightly opined that in my opinion "this nature of loss does not falls in any of the perils of the SFSP policy taken by the insured". The Basement Exposure is excluded from the scope of cover, therefore, the complainant is not entitled to get any compensation from the OPs. He placed reliance on judgment of Hon'ble Supreme Court in Ravneet Singh Bagga v. KLM Royal Dutch Airlines, (2000) 1 SCC 66).
17. In Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition, 2005 the inundation has been defined as "An overflow of water, flood. When flood water flows over lands and causes loss, inundation occurs".
18. The complainant has filed a document containing head "Mine Inundation - Case Histories by V.S. Vutukuri and R.N. Singh in which it is mentioned thus :-
// 13 // "CAUSES OF MINE INUNDATION The classification of mine inundation is necessary in order to understand the underlying cause of sudden inflows so as to provide remedial measures to prevent reoccurrence of such events. A critical review of various past inundation has enabled a classification of mine inundation into three categories, namely; (i) Event Controlled Inundation, (ii) Accidental Inundation and (iii) Spontaneous Inundation (Singh, 1986). The first two types are mining induced inundation whilst the third is a natural phenomenon. The event controlled inundation is associated with caved mine workings below either a confined aquifer or surface bodies of water where the inflow is followed by main and periodic roofs falls in the roof strata. The inflow rate of the water is suddenly increased from the background level to peak rate within a short time and is then reduced exponentially to the background level over a period of time. Spontaneous inrushes, (Sammarco, 1982, and Sammarco, 1986) are a natural phenomenon associated with mining in the vicinity of karst aquifers. Accidental inundation, which is the topic of this paper and is a major cause of concern to the mining industry due to working in the vicinity of large bodies of water, can present a menace to life. A lake or ocean, a large pool of water in an upper seam or water flooding the adjacent old workings, if suddenly released to the lower active workings, could easily flood the current workings with possible facilities. Table 1 presents selected inundation accidents in the Great Britain, the USA and India which have captured the attention of mining engineers all over the world.
ACCIDENTAL INUNDATION The danger of a sudden and accidental inrush of water or material which will flow when wet is a traditional mining hazard. An analysis of inrushes in the British collieries during the period 1981 to 1970 by // 14 // Job (1987) has indentified the sources of inrush and the number of fatal incidents arising from each inrush. As can be seen in Table 2, the greatest risk of accidental inundation is from abandoned flooded workings, the total of 162 is well in excess of all the other inrush sources put together."
19. The OPs (Insurance Company) has filed Status Survey Report dated 14.11.2012 of Kiran Chhabra, Surveyors & Loss Assessors, which is annexed as Annexure OP(2). In the said report, the Surveyor has mentioned thus :-
"12. Cause of loss :
As per the minutes of meeting details that here is a big pond near to the plant premises and due to heavy rains the water level of the ground water raised upwards resulting the pressure of water from ground the underground storage tank 01 no. came out of the ground due to which the connecting pipes and valves etc. were broken and oil started spilling out of the tank in the ground and also got mixed with water as it was raining continuously and caused damages to the stock of re/refined oil.
As explained by the insured's officials that the water travelled below the ground surface level from the pond end to the plant and caused damages to the tank and there had been no flooding or inundation of water inside the plant premises. Further the insured has not cleared the debris and not even started the repairs of structures so that the details of nature of loss underground can be inspected after the removal of the affected tank.
13. Assessment of loss :
The loss has been assessed and enclosed in Annexure 'A' of this report.
// 15 // The assessment enclosed is only a "STATUS ASSESSMENT" as in my opinion many parameters are yet to be analyzed and insured has neither submitted documents in support of it nor any repairs / replacement of the affected property has been carried out till date. The inspection of the affected property after removing and clearance of debris is also yet to be done. Thus, this assessment is only a guideline regarding the extent of the loss of the insured in case, it has to be indemnified by the insurers.
14. Remarks :
- The cause of loss is the uplifting of oil storage tank fixed underground due to raised of underground water level which exerted pressure and resulted in loss of stocks of oil but the said nature of cause and nature of loss does not falls in any of the insured perils of the SFSP policy taken by the insured.
- The insured has not submitted all the documents as per the LOR and as sufficient time has been elapsed after the date of loss so after discussing the same with the insurers claim department we are closing the claim from our end by submitting the "Status Report" and further the insured has not reinstated the affected property till date.
- The insured official Shri Sanket Jain has mentioned in the MOM held during my visit to the plant that in all there are 10 (Ten) storage tanks but as noted from the drawing / layout submitted by the insured that there are 20 (Twenty) storage tanks of finished goods.
- WE had taken measurement of oil in the remaining 09 nos. of tanks by the scale and procedure explained by the insured's officials in Cm (Centimeters) and the insured officials explained tht there is formula by which this height in Cm will be // 16 // converted in Liters but the details of formula has not been provided by the insured till date.
- The insured has not submitted the production log book (point 20 of LOR), Purchase and sale receipt of past six months (point 15 of LOR, Laboratory test report (Point 9 olf LOR) purchase bills of claimed items with specifications.
- The insured has claimed for 4800 Liters of finished goods of Re- refined oil but the insured has not submitted any supporting documents to prove that in the said / affected tank the quantity of oil was 48,000.00 Liters and the quality / grade of oil details has not been submitted.
- The insured has not submitted the drawing / design details of the storage tank in support of the maximum capacity of the tank.
- As per the details gathered from the documents submitted by the insured that there are different qualities / grades of oil in production of finished goods in the factory / plant and the insured has claimed for the oil with highest rate of say more than the sale rate as observed in the sales register but there has been no supporting basis that in the affected tank which particular grade / quality of oil was being stored at the time of occurrence of loss / incidence. It is significance to be noted that the insured has not submitted any log book regarding the procedure of storing and / or transfer of oil after production.
- As the insured has not re-instated the affected property therefore he has not submitted any bills / invoices / payment details etc. of the claimed property.
-
// 17 //
15. Conclusion :
- In my independent opinion this loss does not falls in any of the insured perils of the SFSP policy taken by the insured and further it has been clearly mentioned in exclusions of the policy that "Basement Exposure" is excluded from the scope of cover". So I recommend this claim for "No Claim".
20. The complainant pleaded that due to heavy down pour, ground water must have flown inside the pit of the tank; resulting in breakage of connecting pipes and outlet valves, which comes within the purview of Inundation. The Surveyor, Kiran Chhabra mentioned in her Status Survey Report dated 14.11.2012 there is a big pond near to the plant premises and due to heavy rains the water level of the ground water raised upwards resulting the pressure of water from underground storage tank 01 nos. came out of the ground due to which the connecting pipes & valves etc. were broken and oil started spilling out of the tank in the ground and also got mixed with water as it was raining continuously and caused damages to the stock of re/refined oil.
There was no inundation of water in the premises of the plant.
21. According to Advanced Law Lexicon by P. Ramanatha Aiyar, Third Edition - Inundation means An overflow of water, flood "When flood water flow over lands and causes loss, inundation occurs." From bare perusal of above meaning of the word "Inundation, in the instant case also due to accumulation of water in the pit valves and outlet // 18 // pipes of oil tank no.9 got damaged, therefore, the loss comes within purview of Inundation.
22. The OPs raised objection that the basement is not covered under the policy and as water was entered in the basement, therefore, the complainant is not entitled to get any compensation from the OPs.
23. The above contention of the OPs is not acceptable.
24. The complainant quoted the definition of word "Basement". As per the Chambers New English Dictionary, Edition 1971, basement means lowest storey of a building, below the street level. In general the meaning of the word "Basement" is lowest part of a building partly or wholly below ground level.
25. According to the insurance policy and report of the Surveyor, the basement is not covered. From perusal of the Surveyor's Report, it is established that there is a big pond near to the plant premises and due to heavy rains the water level of the ground water raised upwards where pit of the tank was place and it is not the lowest storey of the building, therefore, the finding of the Surveyor is not acceptable that the basement is excluded from the scope of cover under the policy.
26. We have perused the documents produced by both the parties and also the Surveyor's Report.
// 19 //
27. From bare perusal of the Surveyor's Report, prima facie it appears that due to continuous rainfall, the stock of the complainant was damaged.
28. Now, we shall examine whether the complainant is entitled to get compensation as mentioned in the complaint ?
29. In the instant case, Kiran Chhabra, was appointed as Surveyor and Loss Assessor by the OPs (Insurance Company). She inspected the spot and submitted her report dated 14.11.2012 in which she assessed the loss to the complainant to the tune of Rs.15,53,946/- (Rs. Fifteen Lakhs Fifty Three Thousand Nine Hundred and Forty Six only). 30- In United India Insurance Co. Ltd. And Others Versus Roshan Lal Oil Mills Ltd. And Others (2000) 10 SCC 19, Hon'ble Supreme Court, has observed thus :-
"7. The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document // 20 // has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing."
31. In D.N. Badoni versus Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC), Hon'ble National Commission, has observed thus :-
"11. We see no reason to disbelieve the report of the Surveyor particularly since the petitioner has not been able to produce any credible evidence to contradict the same. The contention of the authorized agent of the petitioner that the Surveyor had admitted that the loss suffered was Rs. 93,340 is not correct. In fact, in his report Surveyor has just quoted the assessment and the details of the repairs given by the petitioner. In the next column of his report, he has listed out the approximate net amount of the loss as Rs. 3,665.63. The District Forum erred in not taking this important evidence into consideration and relied only on the petitioner's version of the loss suffered based on some bills produced by him which have not been proved. It is well settled law that a Surveyor's report has significant evidentiary value unless it is proved otherwise which petitioner has failed to do so the instant case. The State Commission a part from being a Court of appeal in also a Court of fact and has correctly concluded that the actual loss suffered to the vehicle as reported by the Surveyor was Rs.3,715. To this amount the Surveyor has added another Rs.4,000 being the actual amount paid for the toeing charges and by not deducting Rs. 1,500 as excess clause, which is reasonable. We, therefore, agree with the well reasoned order of the state Commission that the petitioner is entitled to get Rs. 7,500 from the respondent as insurance and there is no other compensation warranted in the instant case."
32. In Dipali Das versus United India Insurance Co. Ltd. & Anr. IV (2013) CPJ 233 (NC), Hon'ble National Commission, has observed thus :-
// 21 //
7. In D.N. Badoni versus Oriental Insurance Co. Ltd. I (2012) CPJ 272 (NC), it was observed that it is well settled that a Surveyor's report has significant evidentiary value, unless it is proved otherwise, which the petitioner has failed to do so in the instant case.
8. The Hon'ble Apex Court in United India Insurance Co. Ltd. V. Roshanlal Oil Mills & Ors. (2002) 10 SCC 19, was pleased to hold:
"The appellant had appointed joint surveyors in terms of Section 64-UM(2) of the insurance Act, 1938. Their report has been placed on the record in which a detailed account of the factors on the basis of which the joint surveyors had come to the conclusion that there was no loss or damage caused on account of fire, was given and it was on this basis that the claim was not found entertainable. This is an important document which was placed before the Commission but the Commission, curiously, has not considered the report. Since the claim of the respondent was repudiated by the appellant on the basis of the joint survey, the Commission was not justified in awarding the insurance amount to the respondent without adverting itself to the contents of the joint survey report specially the factors enumerated therein. In our opinion, non-consideration of this important document has resulted in serious miscarriage of justice and vitiates the judgment passed by the Commission. The case has, therefore, to be sent back to the Commission for a fresh hearing."
33. In the case of Ashu Textiles v. New India Assurance Company & Anr., III (2009) CPJ 272 (NC), Hon'ble National Commission observed that the Surveyor's report has to be given more weightage than the report of Fire Brigade and compensation to be assessed on basis of detailed survey report.
// 22 //
34. In Khimjibhai & Sons v. New India Assurance Co. Ltd., IV (2011) CPJ 458 (NC), Hon'ble National Commission observed that "It is to be noted that it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Company and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds which are required to be recorded in the order."
35. In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
36. The complainant submitted that he suffered loss to the tune of Rs.30,00,000/- and sought above amount from the OPs along with interest @ 18% p.a., but we find that the complainant did not produce any cogent and reliable evidence to show that he suffered loss to the tune of Rs.30,00,000/-. On the contrary, in the instant case Kiran // 23 // Chhabra, Surveyor and Loss Assessor gave her report and assessed the loss to the tune of Rs.15,53,946/-. The Report of the Surveyor is a reliable evidence, therefore, the Surveyor's Report is genuine and dependable. On the basis of Surveyor report, it is evident that the complainant suffered loss to the tune of Rs.15,53,946/-, therefore, complainant is entitled to get compensation from the OPs (Insurance Company) to the tune of Rs.15,53,946/-.
37. Complainant prayed for granting interest @ 18% p.a., which is on higher side. Looking to the facts of the case, the complainant is entitled for interest @ 9% p.a. from the date of filing of the complaint i.e. 27.11.2013 till realization on amount of Rs.15,53,946/- (Rs. Fifteen Lakhs Fifty Three Thousand Nine Hundred and Forty Six only). The complainant has also prayed for granting compensation for unfair trade practice, mental agony and harassment for non-settlement of the genuine loss. In our view, the complainant is not entitled for the compensation under this head. Therefore, the prayer of the complainant for granting compensation for unfair trade practice, mental agony and harassment for non-settlement of the genuine loss and interest @ 18% p.a. is turned down. The complainant is also entitled to get a sum of sum of Rs.5,000/- from the OPs towards cost of litigation.
// 24 //
38. Therefore, we partly allow the complaint of the complainant and it is directed that the OPs (Insurance Company) will pay a sum of Rs.15,53,946/- (Rs. Fifteen Lakhs Fifty Three Thousand Nine Hundred and Forty Six Only) along with interest @ 9% p.a. from the date of filing of the complaint i.e. 27.11.2013 till realisation and a sum of Rs.5,000/- towards cost of litigation to the complainant.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
/12/2014 /12/2014 /12/2014